Intellectual Property Rights - Free Essay Example

Intellectual Property Rights Intellectual property can be instrumental to the value of any business. The ability to protect a business or an individuals ideas, inventions and original processes is something that is considered essential to many establishments, particularly those that rely on innovative ideas and products as their unique selling point. Intellectual property rights span a wide range of situations and products, although the most common rights are designs, copyright, patents and trade marks. Each of these intellectual property rights aims to protect a different area of invention. Copyright protects works such as art or music; design protects the physical appearance of a product; trade marks protect the way in which a trader separates himself from his competitors; and patents protect the method by which a product is technically made up and functions. This latter category of intellectual property right can cause considerable difficulty to those applying for protection and those attempting to en force existing rights. Technology and the associated functions are changing constantly and often being tweaked or altered to meet a new requirement. At what point does this become patentable and distinct from the original technology? This requirement to be innovative in some way is the subject of much debate. Determining when that extra step results in a new protectable technological item is the key to ensuring that the correct items are offered protection. Courts have grappled with the relevant issues in determining whether or not a patent should be protected and when an attack on validity should be successful. Throughout the years, various tests have been forwarded by the courts; however, consistency in relation to obviousness and the concept of novelty and invention have proved particularly troublesome and are often hotly debated in court proceedings. Elements of Patent Law Before determining the way in which the courts deal with the issues surrounding obviousness and novel ty, it is first important to gain an understanding of what must be established in order to establish a valid patent, successfully. The basic definition of what is patentable is contained in Section 1(1) of the Patent Act 1977 (the Act). This Act states that in order to be patentable the invention must be new, must involve an inventive step and be capable of industrial application. The Act then goes on to consider each of these requirements, in more detail. Section 2 deals with the requirement that the invention is new. This requirement is commonly referred to as the novelty requirement. Section 2(1) states that for an invention to be novel or new it must not form part of the state of the art. Section 2(2) goes on to consider what state of the art actually encompasses. It defines state of the art as any matter (i.e. product, process, etc. ) that has previously been made available to the public by either a written or oral description. Simply put, if the invention has already bee n made available to the public, it is not going to be eligible for patent protection. When determining whether or not an invention is new or novel, the issue of whether or not it has been made available to the public will become central. The invention, in order to be considered in the public domain, must have been disclosed to at least one member of the public, who could if he wished use the information freely and the disclosure had to be sufficiently enabling. Sufficiently enabling means that the information contained must be such that someone who has a reasonable level of skill in the area to which the invention relates would be able to implement and make use of the disclosure. The disclosure must be in relation to one document (or one document with several others interlinked) and cannot simply be disclosure obtained from a mosaic of documents. There are exceptions to this rule in relation to disclosure that allow a patent still to be established where the disclosure has bee n made within six months of the patent application and has been done in confidence. Pulling these factors together, it is clear that the need for novelty insists on the patent being completely new and innovative. Although, based on the mosaic rule, the collection of previous documents and information to create a new invention will not be barred from receiving patent protection. The Issue of Novelty From looking at the above breakdown of what an individual has to prove in order to establish a valid patent, it is clear to see that the issue of novelty is central to most patent decisions. The Section 2 requirement for novelty contained in the Act is a corresponding provision of Articles 54 and 55 of the European Patents Convention (1973) (EPC). As a general rule, an invention is not novel if the amalgamation of features has already been anticipated in a previous disclosure. This point was considered in detail in the case of SmithKline Beecham Plcs Patent [2006] RPC 10. In t his case, it was held that for there to have been that degree of anticipation, there must firstly have been a disclosure and there must secondly have been the element of enablement. That is, based on the disclosure, the suitably skilled individual receiving the details of the process would have been able to replicate the process disclosed. Pulling together both of these elements will allow the court to decide whether or not the patent before them is novel or not. Let us first consider the element of disclosure. When it comes to determining whether or not the specific invention has been previously disclosed, the question is not whether the prior disclosure was for an item of similar utility, i.e. it does not necessarily have to solve exactly the same problem as the current invention. In deciding this matter, courts have stated that in order to be a conflicting patent, the situation previously disclosed must be so close to the new invention that the utility gained by the new inv ention would be a practical certainty. This suggests that in order to establish a valid objection to a patent application on the basis of a prior disclosure, it would have to be shown that the prior invention was inextricably linked in terms of function to the new invention. Therefore, even if something similar has been previously disclosed, provided it is not close with the degree of inevitability that is required, the patent application will not necessarily fail on the basis of not being novel. A general disclosure of a possible process does not impact on the novelty of an invention; however, where there is a series of processes, each individual process could be the reason for a future patent application failing, due to lack of novelty. Secondly, there is the element of enablement. This means that whatever has been disclosed must be sufficient for a person, skilled in the relevant art, to copy or replicate the process or invention. This enablement provision should be thought of separately to the disclosure, as in the case of disclosure the information must be sufficient for a skilled individual to understand the disclosure. For the purpose of enablement, the skilled person must be capable of actually utilising or at least trying to utilise the relevant invention. When it comes to determining whether or not the invention is novel, therefore, several issues need to be considered. It is not simply a matter of determining if something similar has ever been made public. It must have been made public with sufficient clarity as to allow the invention to have been understood and put into effect by another third party. The patent, therefore, in order to gain protection, must offer a solution to a situation that has not been possible to achieve before and not simply a fanciful possibility of a solution given enough further experimentation. As stated in the case of General Tire Rubber Co. v Firestone Tyre Rubber Co. Ltd, the disclosure must contain clear and unmistakable directions to do what the patentee claims to have invented. Pharmaceutical Application The pharmaceutical industry as a whole has been one of the most litigated and dynamic areas in relation to the test of novelty. The recent case of Actavis UK Limited v Merck Co. Inc changed the way in which UK courts look at the test of novelty in relation to medical products. Prior to the Actavis case, it was thought that a new dosage or way of taking a particular drug could not be seen as novel; this has now been reversed by the Court of Appeal. In this case, it was held that a new regime for taking medicine could constitute a novel invention for the purpose of obtaining a valid patent. Furthermore, the court dealt with the issue of obviousness, stating that it had to be obvious at the date of priority, not before or after, to defeat the patent, on this basis. The leading case of Merrell Dow v. Norton and Penn, commonly referred to as the Terfenadine decision, held tha t when looking at a pharmaceutical process the definition of new had to be applied to the actual processes and not to a new result or outcome. In this case, it was held that although Merrell had discovered a new reaction from Terfenadine, it was not novel as the composition had previously been disclosed to the public (albeit not for that specific purpose). This produces an interesting position. Based on this judgment, it would seem that whether or not the process or invention produces a solution for a previously unsolvable issue is irrelevant; the issue is whether the actual matter itself has been disclosed. The focus of the test is on the physical items and not on the resulting outcome. Bearing this decision in mind and the way in which the courts have chosen to deal with pharmaceutical claims, it would seem impossible to conclude that the issue of patentability is based purely on finding a solution for a technical problem that could not be solved before. Obviousness This leads us on to consider how important the actual resulting process or invention is to the determination of whether or not it is patentable. Aside from the requirement of novelty, the process or invention must involve and innovative step. This has been interpreted to mean that the invention would not be obvious to someone skilled in the art when presented with the relevant matter. One of the ways in which this test has been interpreted is to consider whether or not it fills a gap in the market, thus becoming an immediate business success. If this is the case, it is more likely that the invention would be seen as non-obvious and, therefore, patentable. The requirement for this inventive step is contained in Section 3 of the Act. Deciding on what exactly is obvious and what is not has been a matter for the courts. In the case of Windsurfing International Inc. v Tabur Marine (Great Britain) Ltd, the main test for obviousness was laid down and remains the starting point for judges whe n deciding whether or not the invention is obvious. It was held that the court should take a four stage approach. Firstly, it should look at the inventive step itself in isolation, i.e. separating it from any supplementary aspects of the invention. Secondly, once the court is clear what the inventive step in question actually is, it should put itself in the position of the common person, skilled in the relevant art with the knowledge that was available at the date of priority. Thirdly, the court needs to consider the difference between what is known by the common man and what the invention professes to display. Finally, the court needs to determine whether the step between what is known and the invention would have been obvious to the common man. For example, in the case of Sabaf SpA v. MFI Furniture Centres Limited and others, the House of Lords considered the issue of whether the gas burner in question was obvious. In this case, the argument that Sabaf was presenting to the cou rt was that its patent for a gas burner had been infringed. The respondents (MFI and others) claimed that they were using a new invention as it was, in fact, the combination of two inventions that had generated their specific gas burner. The crucial point here was that it was not possible to take two existing inventions and put them together to establish a new invention, where this new invention would be the obvious product of the two original inventions. The test for being obvious seems to be reasonably wide with the court requiring a definite inventive step and not simply a natural progression, even if the natural progression is novel. Conclusions The area of patent law and, in particular, determining whether or not an invention is novel and / or obvious is by no means clear. The courts take a very individual approach to each case as it is presented to them based on the individual facts. Despite this, it seems that both elements, i.e. novelty and obviousness, remain instr umental. It is not true to say that provided an invention is novel it does not matter whether or not it is obvious. The courts have widened their view of obviousness but not so far as to remove it entirely. Therefore, if the patent in front of the court fails the test of obviousness and a person skilled in that specific area could have also established the invention it would fail, regardless of how novel the invention turns out to be. Both tests must be suitably established in order to gain patent protection. Producing a solution to a problem is highly important to the decision, but it is not the only deciding factor. The issue of obviousness simply cannot be ignored. Bibliography (14 required) Bagley, Margo A. , Patent First, Ask Questions Later: Morality and Biotechnology in Patent Law, William and Mary Law Review, Vol. 45, 2003 Bainbridge, David I. , Intellectual Property, Pearson Education, 2006, Pages 374 407 Colston, Catherine, Principles of Intellectual Proper ty Law, Cavendish Publishing, 1999, Pages 86 105 Cornish, William Rodolph, Vaver, D. , Bently, Lionel, Intellectual Property in the New Millennium: Essays in Honour of William R. Cornish, Cambridge University Press, 2004, Pages 91 95 Grubb, Philip W. , Patents for Chemicals, Pharmaceuticals, and Biotechnology: Fundamentals of Global Law, Practice, and Strategy, Oxford University Press, 1999 Hodkinson, Keith, Protecting and Exploiting New Technology and Designs, Taylor Francis, 1988, Pages 32 71 Johnston, Josephine, Wasunna, Angela A. , Patents, Biomedical Research. And Treatments: Examining Concerns, Canvassing Solutions, The Hastings Center Report, Vol. 37, 2007 Karet, Novelty under English Law. Appeal in Merrell Dow v Norton 16(5) European Intellectual Property Review 204, 1994 Muir, Ian, Brandi-Dohrn, Matthias, Gruber, Stephan, European Patent Law: Law and Procedure under the EPC and PCT, Oxford University Press, 1999 Patterson, Mark R. , Contractual Expa nsion of the Scope of Patent Infringement through Field-of-Use Licensing, William and Mary Law Review, Vol. 49, 2007 Pressman, David, Patent It Yourself, Nolo, 2008, Pages 15 20 Taylor, Christopher Thomas, Silberston, Aubrey, The Economic Impact of the Patent System: A Study of the British Experience, CUP Archive, 1973, Pages 12 23 Thomas, John R. , Litigation beyond the Technological Frontier: Comparative Approaches to Multinational Patent Enforcement, Law and Policy in International Business, Vol. 27, 1996 White, The Novelty-Destroying Disclosure: Some Recent Decisions 9 European Intellectual Property Review 315, 1987

Poetry Of Romanticism - Free Essay Example

A young writerrs first introduction to poetry begins with the schoolyard classics: The lunatic, the lover, and the poet are of imagination all compact, as Shakespearers line rings. Dickenson states much madness is Divinest sense. I became insane with long intervals of horrible sanity. goes Edgar Allan Poe. And while Sylvia Plath desperately questioned, Is there no way out of the mind? Anne Sexton admits that Poetry led me by the hand out of madness. The most popular themes of poetry have been the same throughout its history: depression, bipolar disorder, paranoia, and just plain insanity, all glazed with a lens of romance. In this essay, I will analyze three poems by three writers not just famed for language that would influence English creativity forever, but for changing the meaning of creating art through poetry. All three pieces can be found attached to the end of this paper. The Sylvia Plath Effect was first named by James C. Kaufman, a psychologist who took an interest in the creative field, stating the use of Plathrs madness as a tool to analyze the truth of her poetry is the plain fetishization of her condition. A study of sample groups determined that female poets and writers were much more prone to mental health deficiencies than any other women in other creative careers, or male poets, but gave no supporting reasons for why that fact may be true. In the case of women, more often than not the refusal to participate in patriarchial values would have them dismissed as mad or hysterical. The discussion has circled around the stigmas of women being the more oppressed gender in the time of the famed young suicide, but what of the male poets who defied the stoic nature of the 20th century and previous? For me, my fascination with the macabre began with Edgar Allan Poe. While imagery was always taught to be made rich with use of color and shape and texture, Poe reeled me in with dark, muted tones and unsettling shadows and grisly emotion. Although his most popular piece would be The Raven, for the purposes of this essay I will be analyzing Alone to exemplify the classic tormented mind. The poem opens up with an admission, From childhoodrs hour I have not been / As others were / I could not bring / My passions from a common spring† that he had always known from childhood that he saw things differently. His passions were not stemmed from things like spring and light and color; he saw beauty in darkness and abnormality, as that was exactly who he was. His use of em dashes portray abrupt and longing ends to his lines. He goes on, From the same source I have not taken / My sorrow / all I lovd†I lovd alone† explaining that the very thing he found beauty in also brought him great pain, and loneliness. His grief was also his love. He circl es back to childhood, in the dawn / Of a most stormy life†was drawn claiming his life began in shrouded mystery, like begin trapped in a storm, From evry depth of good and ill / The mystery which binds me still† all the joy and grief in his life are woven into him as a code that neither he or anyone else can decipher, only observe. His ability to express this mystery weighs him down, binds him to the despair. Poe uses color next to describe the storm red cliff of the mountain and autumn tint of gold are the colors of his dawn. Alone closes From the thunder, and the storm† / And the cloud that took the form / (When the rest of Heaven was blue) / Of a demon in my view† He continues to be plagued with the darkness, the storm, until the foreseeable end, which finally becomes him, a Lopez, 2 cursed demon. Poe intertwined the beauty of landscape with the gloom of his own depression or his otherness from most people. His fascinating and unique perspective of enamor begins a path of romanticism for like-minded artists. In the century following Poers example, the next giant and most notable, in my opinion, of dangerous romanticism is Sylvia Plath, for whom the phenomenon was named after. In her poem Apprehensions, she describes a room she is in. As she moves from each wall in four stanzas, she exposes four sides of herself, her different and alternating moods and eyes with which she sees reality. The first wall is white: clean, pure, angelic. She describes a white wall as green, a color symbolizing life and growth. On this white wall, she also finds her medium, which is poetry. Poetry on the white wall is her solace amongst the other three. The next wall is grey, where there is no life, and where Plath feels she needs to escape by describing claw marks, perhaps of her own accord. This sadness wall is when she questions Is there no way out of the mind? The third wall is red and filled with pain. The red wall, fittingly the color of blood, is a pulsating fist that makes up herself, along with a terror / of being wheeled off under crosses expressing her fear of life to be comparable to the reign of a church. The final wall is black, which classicly symbolizes death. Her e are described birds, much like Poers raven, ominous and crying out. Plaths tone alternates with each new stanza, ranging from a muted calm to agony and despair. Although her style varies from the well known Plath, therers something very distinctly feminine about Sextonrs work. One of Anne Sextonrs most famous poems Wanting to Die is deeply rooted in her lifelong battle with mental illness and depression. In Wanting to Die, Sexton explains her rotating feelings about death, having possessed the enemy, eaten the enemy, / have Lopez, 3 taken on his craft, his magic. forming a deep understanding of what itrs like to be death itself, entranced by its attraction, and even admitting spell-binding herself into a romance with death. She describes her relationship with death becoming as a lover or a friend that waits for her to so delicately undo an old wound, relieving her from the dazed and purposeless state of her life. In this way, Sexton is convinced that the certainty of death is far more inviting than being constantly betrayed by a life that year after year keeps her waiting for its end. Personifying death as both a man and a woman in this poem suggests a duality in Sextonrs sexuality, but more generally, that death is an alluring temptress to any person. While traditionally portrayed as a terrifying figure such as the grim reaper, many literates describe death as an ally, often a roman tic partner. Sexton cannot remember most days of her life before her lust for death. Death gave her something to search for, in the same way one longs for a lover, and promises for certainty than life does. Perhaps handing the reins of her existence to death is a much more appealing alternative of struggling to control it herself. So why is the poet drawn to madness? A common thread that runs through each of these poems is the braid of beauty with tragedy, or beauty and despair at least. This method along with the grey area between a poets work and a poetrs life has seduced readers of vulnerable and malleable minds to think that mimicking the lifestyles and outlook, no matter how alien to oneself, will result in more successful work. Some believe that expressing toxic emotions through writing can relieve their anxieties. But for others, such as writers who make a practice of reliving pain, it leaves a strive to maintain the joy of being successful with the long-term effects that come with producing it. For young writers experimenting with identity through the art of Lopez, 4 poetry, assimilating to the morbid voices of fallen artists creates the ideal that depression and other mental illnesses will solicit the same legacy. Spoken word artist Laura Dockrill says I think youve always got to be interested in a slightly different aspect of the universe to even want to pick up a pen and analyze the world through poetry, Perhaps by observing reality through a slightly different aspect poets revel in the things that make life different from that of an uncreative person, who might find satisfaction in accepting the world as it is as opposed to interpreting what it might mean. Although science hasnt given an answer as to what makes a person creative, poets have already discovered that itrs in the way one navigates the social rules and the conflict thereafter. Poet Luke Write says, I dont think you have to be mad to be a poet but if your mind is alive, then it can produce both positive and negative responses. It can mean wonderful things but it can mean that fitting into normal life is difficult. A healthier and perhaps ore accurate perspective on these morose voices is not to credit their demons for the work, but to credit the writer for the work in spite of the demons.